Courts did play a remarkable role in the human rights revolution of the past decades. This course reviews the impacts of courts’ human right protecting activities on the theory of constitutional adjudication and on legal theory in general. Legal theory and judicial protection of human rights is a two way process. Modern reflections on law and rights developed in legal theory, the understanding of the role of courts in society had an impact on judicial activism. These are the key problems of the course that will be discussed in an East-West comparative context.

The social and political changes in Eastern Europe and the gradual transformation of the economy which erodes traditional forms of social organization in the West represent new challenges to law and seriously test the validity of established legal theories. The course not only offers a critical review of contemporary theories (hermeneutics, critical theory autopsies, functionalism, liberalism)but it confronts post modernism in light of actual legal developments. Is post-modern law possible?

What is the relevance of norms in uncertainty? What is the place of rights in today’s judicial reasoning?. How, as a formal matter, do (and should) courts respond to recognized problems in the political system -- constitutional replacement, formal amendment, amendment though “interpretation,” etc.? One of the major theoretical issues then becomes whether we can distinguish between legitimate (or at least plausible) “interpretations” as against what we might call “pseudo-interpretations” that in effect represent the court’s making what it thinks a necessary change in the constitutional order because the political system itself is blocked from making the change.

Two alternative judicial approaches to rights protection will be compared: review “incidenter” which is most typical in the US and the system of review known as “principaliter” devised first by the Austrian-German constitutional courts, and followed in both Western and Eastern Europe.